Board: Developer violated amenities plan

Friday, Oct. 7, 2005

Click here to enlarge this photo Rachael Golden⁄The Gazette Activist Amy Presley pointed to the developer’s rolein buildingviolations in Clarksburg at theMontgomery County Planning Board’s meeting Thursday. Click here to enlarge this photo Rachael Golden⁄The Gazette Bill Mooney, acting deputy Park and Planning director, exchanges a glance with Rose Krasnow, chief of the development review division, at Thursday’s Planning Board meeting.

But the commissioners will not assess any remedy until Nov. 3.

The board also acknowledged that its records appear too spotty and conflicted to decide on other issues scheduled for Thursday.

‘‘It’s clear the current state of community facilities is not adequate to support the community that’s there,” Commissioner John Robinson said.

Specifically, the board said, Newland failed to provide bikeways, walkways, one of two required swimming pools, one wading pool, an indoor fitness building that has not opened, recreation areas at Murphy’s Pond, soccer and baseball fields that are to be connected to an elementary school set open in August.

Planning staffers argued in a report issued before the hearing that amenities meant to be used by the community were to be provided when 70 percent of units in the Town Center were occupied.

Newland’s lawyers contended that the planners’ interpretation was ‘‘illogical” and that the occupancy trigger was meant to be applied phase by phase as the Town Center was built.

‘‘Documents relating to this issue are somewhat confusing,” said Rose G. Krasnow, the county’s development review chief.

If there is an ambiguity with the trigger, the board should protect the community and vote against the developer, Robinson said.

The board also decided that developers and the planning department did not violate their obligations to inspect the work adequately and on time.

But that finding, based on a system that requires planning staff to inspect when developers make a request, did not satisfy critics who said the approval process has fallen short.

Approval enforcement remains a serious issue because developers have been allowed to ‘‘do what they are not supposed to do,” said David Brown, a lawyer for Clarksburg Town Center Advisory Committee, the activists whose research uncovered the Clarksburg planning scandal this summer.

After CTCAC discovered earlier this year that a planner had falsified documents to hide the fact that the developer violated height limits, the Planning Board reversed itself in July and found that 433 townhouses and an apartment building in Clarksburg were too tall and that 102 houses were built too close to roads.

But the group’s discoveries lifted the lid on a planning department and a process that civic groups — and now, more politicians — say have gone too far to accommodate developers at the expense of residents.

‘‘Failure by your staff to investigate fully does not absolve developer of their obligation under the law,” CTCAC co-founder Amy Presley told the Planning Board at the seven-hour hearing.

Commissioner Meredith K. Wellington noted that the board always has had authority to inspect any time, and Chairman Derick P. Berlage said planning staff recognizes it needs to inspect more.

As to the debate over what documents and laws determine what is required of developers, Presley said, ‘‘If the county has so much confusion over its code that the board and County council can only point to your agency as scapegoat, then we have a much larger problem.”

Presley said she was happy that the board, by a 4-1 vote, not to decide Thursday whether Newland Communities had violated its obligations to provide affordable housing units at a pace comparable to market-priced units and spread them, as required, throughout the community.

Commissioner Allison Bryant dissented because he wanted to settle the issue of allowing MPDUs at the retail center despite zoning problems.

Not to do so could be a form of ‘‘economic discrimination,” he said.

Berlage noted that the developer moved the MPDUs from the location the board originally approved although ‘‘clearly neither Park and Planning nor the developer had documentation” for it.

Among CTCAC complaints not yet on the board’s agenda are claims that some streets are too narrow for fire trucks to maneuver and that grading is 10 feet to 15 feet higher than approved.

Another hearing on Clarksburg is scheduled for Oct. 25.